Bring Halliburton Home
lookout by Naomi Klein
[from the November 24, 2003 issue of The Nation]
This article can be found on the web at
http://www.thenation.com/doc.mhtml?i=20031124&s=klein
Cancel the contracts. Ditch the deals. Rip up the rules.
Those are a few suggestions for slogans that could help unify the
growing movement against the occupation of Iraq. So far, activist
debates have focused on whether the demand should be for a complete
withdrawal of troops, or for the United States to cede power to the
United Nations.
But the "Troops Out" debate overlooks an important fact. If every last
soldier pulled out of the Gulf tomorrow and a sovereign government came
to power, Iraq would still be occupied: by laws written in the interest
of another country, by foreign corporations controlling its essential
services, by 70 percent unemployment sparked by public sector layoffs.
Any movement serious about Iraqi self-determination must call not only
for an end to Iraq's military occupation, but to its economic
colonization as well. That means reversing the shock therapy reforms
that US occupation chief Paul Bremer has fraudulently passed off as
"reconstruction" and canceling all privatization contracts flowing from
these reforms.
How can such an ambitious goal be achieved? Easy: by showing that
Bremer's reforms were illegal to begin with. They clearly violate the
international convention governing the behavior of occupying forces, the
Hague Regulations of 1907 (the companion to the 1949 Geneva Conventions,
both ratified by the United States), as well as the US Army's own code
of war.
The Hague Regulations state that an occupying power must respect "unless
absolutely prevented, the laws in force in the country." The Coalition
Provisional Authority has shredded that simple rule with gleeful
defiance. Iraq's Constitution outlaws the privatization of key state
assets, and it bars foreigners from owning Iraqi firms. No plausible
argument can be made that the CPA was "absolutely prevented" from
respecting those laws, and yet two months ago, the CPA overturned them
unilaterally.
On September 19, Bremer enacted the now-infamous Order 39. It announced
that 200 Iraqi state companies would be privatized; decreed that foreign
firms can retain 100 percent ownership of Iraqi banks, mines and
factories; and allowed these firms to move 100 percent of their profits
out of Iraq. The Economist declared the new rules a "capitalist dream."
Order 39 violated the Hague Regulations in other ways as well. The
convention states that occupying powers "shall be regarded only as
administrator and usufructuary of public buildings, real estate,
forests, and agricultural estates belonging to the hostile State, and
situated in the occupied country. It must safeguard the capital of these
properties, and administer them in accordance with the rules of
usufruct."
Bouvier's Law Dictionary defines "usufruct" (possibly the ugliest word
in the English language) as an arrangement that grants one party the
right to use and derive benefit from another's property "without
altering the substance of the thing." Put more simply, if you are a
housesitter, you can eat the food in the fridge, but you can't sell the
house and turn it into condos. And yet that is just what Bremer is
doing: What could more substantially alter "the substance" of a public
asset than to turn it into a private one?
In case the CPA was still unclear on this detail, the US Army's Law of
Land Warfare states that "the occupant does not have the right of sale
or unqualified use of [nonmilitary] property." This is pretty
straightforward: Bombing something does not give you the right to sell
it. There is every indication that the CPA is well aware of the
lawlessness of its privatization scheme. In a leaked memo written on
March 26, British Attorney General Lord Peter Goldsmith warned Prime
Minister Tony Blair that "the imposition of major structural economic
reforms would not be authorized by international law."
So far, most of the controversy surrounding Iraq's reconstruction has
focused on the waste and corruption in the awarding of contracts. This
badly misses the scope of the violation: Even if the selloff of Iraq
were conducted with full transparency and open bidding, it would still
be illegal for the simple reason that Iraq is not America's to sell.
The Security Council's recognition of the United States and Britain's
occupation authority provides no legal cover. The UN resolution passed
in May specifically required the occupying powers to "comply fully with
their obligations under international law including in particular the
Geneva Conventions of 1949 and the Hague Regulations of 1907."
According to a growing number of international legal experts, this means
that if the next Iraqi government decides it doesn't want to be a wholly
owned subsidiary of Bechtel or Halliburton, it will have powerful legal
grounds to renationalize assets that were privatized under CPA edicts.
Juliet Blanch, global head of energy and international arbitration for
the huge international law firm Norton Rose, says that because Bremer's
reforms directly contradict Iraq's Constitution, they are "in breach of
international law and are likely not enforceable." Blanch argues that
the CPA "has no authority or ability to sign those [privatization]
contracts" and that a sovereign Iraqi government would have "quite a
serious argument for renationalization without paying compensation."
Firms facing this type of expropriation would, according to Blanch, have
"no legal remedy."
The only way out for the Administration is to make sure that Iraq's next
government is anything but sovereign. It must be pliant enough to ratify
the CPA's illegal laws, which will then be celebrated as the happy
marriage of free markets and free people. Once that happens, it will be
too late: The contracts will be locked in, the deals done and the
occupation of Iraq permanent.
Which is why antiwar forces must use this fast-closing window to demand
that the next Iraqi government be free from the shackles of these
reforms. It's too late to stop the war, but it's not too late to deny
Iraq's invaders the myriad economic prizes they went to war to collect
in the first place.
It's not too late to cancel the contracts and ditch the deals.